TB8-03830

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB8-03830 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 14, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Wennie Lee Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the "Appellant"), a citizen of China, alleges that he is at risk in China due to his anti-government activities. He alleges that he has been detained by the Public Security Bureau (PSB) on three occasions with no charges laid. [2] After his last detention, which was July 5, 2016, the Appellant was dismissed from his job. [3] The Appellant applied for a passport and received it in August 2016. He applied for a Canadian visa, and it was issued to him on April 7, 2017. A few later (XXXX XXXX XXXX XXXX), he departed China from Xiamen (Fujian province) landing in Vancouver and then Toronto, arriving on XXXX XXXX XXXX XXXX XXXX [4] The RPD found that the Appellant was not credible, that he was not at risk from the PSB. [5] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. ANALYSIS Standard of Review [6] For questions of fact, law, and mixed fact and law, I have applied the standard of correctness, as per Huruglica.1 Admissibility of New Evidence [7] The Appellant has submitted new evidence for my consideration. The Appellant submits three screenshots. [8] The Appellant argues that the new evidence was not reasonably available at the time of the RPD hearing because the Appellant produced at the hearing some still photographs of himself at the event in question and testified that he was there. The Appellant argues that he could not reasonably expect to have to adduce more evidence than that. Counsel argues that the panel's insistence on corroborative evidence was entirely unreasonable and illogical, as the panel already had before him the still photos and the testimony of the Appellant. [9] I disagree with counsel and the Appellant. The Appellant had alleged that there "may" have been photographs and videos of the event on news outlets that day. If the Appellant believed his face may have been on news outlets due to his participation in that event, then he should have adduced the evidence. [10] In Vijayakumar,2 Justice Fothergill stated: "The applicant says that the documents were relevant to the adverse credibility findings of the RPD, and he could not have produced them earlier because the RPD's rejection of his testimony was not foreseeable." Subsection 110(4) must be interpreted narrowly. Evidence that simply corroborates facts or contradicts the RPD's findings does not fall within the meaning of new evidence. "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected."3 [11] The evidence that the Appellant is trying to introduce now does not comply with IRPA subsection 110(4), as it was reasonably available pre-decision. Also, the Appellant had three weeks between the hearing and the date of the decision during which he could have and should have sought leave to submit these videos as post-hearing evidence. He chose not to do so. As the Court has clearly stated, this appeal is not an opportunity for the Appellant to make up for a deficient record submitted before the RPD. [12] For this reason, I will not accept the new evidence. Oral hearing [13] As no new evidence has been admitted, I cannot hold a hearing in accordance with subsection 110(6) of the IRPA. The request is denied. Arguments Evidence of detention 2013 [14] Counsel argues that the panel's analysis on this issue is premised on a misstatement of the Appellant's oral testimony.4 The panel went on to find that the Appellant's evidence was inconsistent because the Appellant first stated that the 2013 detention order was mailed from Beijing, and later, he stated that it had been hand delivered. Counsel argues that there was no inconsistency as found by the panel because the panel simply misstated the evidence. While the panel found that the Appellant first said that the detention order was mailed and then contradicted himself by saying it was hand delivered, counsel argues that, in fact, the Appellant said he was told it would be mailed, but it ended up being hand delivered.5 [15] I have read the transcript and must concur with counsel. It is clear that the Appellant did not contradict himself, as he clearly testified that he was told by the PSB that they would mail the document to his family. The fact that the local PSB decided to hand deliver the document has no reflection of contradiction by the Appellant. How the document ended up being delivered was out of the Appellant's control. The panel made an error here by misstating the testimony. [16] Counsel further argues that the panel went on to find that the Appellant was not detained and that no such detention notice was issued. According to counsel, as this finding was premised on a misstatement of the Appellant's testimony, it is wholly unreasonable and is simply without basis. There were no contradictions, inconsistencies, or implausibilities in the Appellant's testimony on this issue. [17] Again, I concur with counsel. The finding that there was no detention is without a solid basis. Although an original of the detention order would have been nice, the panel did not suggest that the copy was fraudulent, nor did the panel indicate any reason to believe that the copy was not a true copy of a genuine document. Given that the Appellant has the benefit of being considered truthful unless there is good reason to disbelieve him,6 the only reason given to disbelieve him was based on the misstatement above. Therefore, with the unrefuted evidence and testimony before the panel, it was an error for the panel to make this finding. Sur Place claim [18] Counsel argues that the panel's finding that the Appellant is not a genuine and ongoing political dissident because he has only attended one protest in Canada, characterized by the panel as a "commemoratory event", is speculative and ignores the facts in this case. It ignores the Appellant's extensive testimony about his political views opposing the Chinese government, and his evidence that he has participated in protests and political movements in China, at great personal risk, and had been detained on three occasions for the same activities. [19] I have read the transcript of the hearing. I take note that the Appellant seems to me to have a very keen sense of politics in his country. He was well versed on the "New Citizen's Movement" knowing much more than one would expect of someone not politically involved. The Appellant answered all of the panel's questions regarding the Appellant's political viewpoints, without hesitation. He was equally well versed on the history of China's politics and was easily able to expound on his own political views. [20] I am satisfied that the Appellant was politically active in China, in a manner contrary to what the Chinese state would appreciate. Counsel argues that the panel's assertion that the Appellant's political activity in Canada was insufficient for a person who is a true political dissident and certainly not egregious enough to warrant the attention of the Chinese government is in error. [21] Counsel argues that the panel seemed to ignore the fact that the Appellant had only been in Canada a total of five months when he had his hearing. The Appellant speaks no English, is in a foreign country and is unfamiliar with his political surroundings. Yet, the Appellant still was able to find and attend one event within that short time-frame. Counsel argues that it is unreasonable to find that the Appellant is not a political dissident simply because he attended only one event in the short span of time he was in Canada. [22] Further, counsel argues that the panel's finding that the Appellant's participation in a protest directly outside of the Chinese Embassy would not likely come to the attention of the Embassy is illogical, unreasonable and speculative. [23] Counsel refers me to a Federal Court finding7 regarding a protester outside of the Burma Embassy. There was no doubt that the claimant had been at the protest, as he had photos proving that, just as the Appellant in this case has presented. In that case, the Court stated: The Applicant protested in a very public manner outside the Consulate of an ally of Burma, with a placard and in a group actively condemning the crimes committed by the Burmese regime. The photographs submitted by the Applicant attest to this public demonstration. Given the public nature of this protest, a fact not in dispute, it was unreasonable for the PRRA Officer to decide that the Burmese Junta would not become aware of it. [24] I concur with counsel on this issue. It is naïve to think that the Chinese Embassy was not taking due notice of a protest in front of their Embassy. [25] It is my finding that, given the circumstances, the Appellant has shown that he was at the event, that there is a strong likelihood that the Chinese officials are aware of his participation and that participation may, when combined with his activities in China, put him at risk. Detention vs. Passport Issuance [26] Counsel argues that the Board Member erred when she found that the claimant was not detained in 2016 on the basis of an alleged contradiction between the detention and the fact that the claimant was issued a passport a month after his release. Counsel argues that the panel improperly inferred, without evidence, that the Appellant's release from detention in 2016 necessitated a travel restriction on him, in spite of the Appellant's testimony to the contrary. Counsel argues that the panel then extrapolated that, if there was no travel restriction put on the Appellant, then the PSB were no longer interested in him. [27] Counsel argues that such a finding, as that above, is an implausibility finding, and that is an error. That finding ignores the Appellant's testimony of how he was dismissed from the government-owned company for which he worked, due to pressure on his employer from the PSB. That pressure to have the Appellant dismissed and basically banned from his profession as a securities analyst indicates clearly that the Appellant was, at that time, subject to the interests of the PSB. [28] I concur with counsel that the above implausibility finding was an error. [29] I have scanned the documents8 available at the Board in regard to the issuance of passports in China. The "Passport Law of the Peoples' Republic of China" sets out a list of conditions under which a passport may be refused by the PSB. Article 13: The passport issuing authority shall refuse to issue a passport if the applicant: (1) does not possess the nationality of the People's Republic of China; (2) cannot prove his identity; (3) practices fraud in the course of application; (4) is punished for a crime and is serving a sentence; (5) is not allowed to leave the country because of an unsettled civil case, as is notified by a people's court; (6) is a defendant in a criminal case or a criminal suspect; or (7) is a person who the relevant competent department of the State Council believes will undermine national security or cause major losses to the interests of the State. [30] In this particular case, the Appellant was detained for fifteen days and then released without charges. Therefore, it is reasonable to presume that he was eligible for a passport, as he was not a defendant in a criminal case (no charges laid), was not a suspect in a criminal case and was not involved in any unsettled civil actions. Nor was the Appellant serving a sentence for any crime. [31] It is entirely possible that the PSB could have had issues in issuing a passport to the Appellant for other reasons; however, the Chinese Passport Law is clear, and without evidence contradicting the Appellant's testimony on this issue, the panel's finding, as I stated above, is in error. Original Detention Notices [32] Counsel argues that the panel erred when she did not accept the Appellant's explanation for the absence of original detention notices. The Appellant explained that it had been a long time since he was detained and that he had taken pictures of the notices with his phone in case he would ever need them. The copies submitted were downloaded from his old cell phone. The panel stated that the Appellant's failure to provide original documents "casts further doubt on the veracity of the allegations".9 [33] Counsel reminds me that the Court has spoken on the issue of document presentation. Counsel argues that, according to Aydin,10 original documents are a form of corroborative evidence and, according to Lopera,11 whether corroborative evidence can reasonably be demanded depends upon the facts of each case. Although the absence of the original documents was explained, the panel stated that their absence "casts further doubt on the veracity of his allegations".12 Counsel argues, however, that the apparent doubts that the panel had regarding the veracity of his allegations were based on the improper and unsupported inference explained above. Further, counsel argues that the improper credibility finding concerning the supposed contradiction between the Appellant's release from detention and his ability to obtain a passport eroded the credibility of the Appellant in the eyes of the panel. This finding clearly impacted the panel's finding regarding the original documents. As such, it is submitted by counsel that the panel erred in premising this negative credibility finding concerning the absence of original documents upon another unreasonable credibility finding. The Appellant's explanation as to why he was not able to produce the original documents was reasonable and straightforward. It was unreasonable for the panel to require these documents in the context of this claim, as she had no reasonable basis for doubting the Appellant's credibility. [34] Again, I must concur with counsel for all the reasons above. Failure to assess risk [35] Counsel argues that the panel failed to assess whether the Appellant was at risk of persecution on the basis of his political opinions. Counsel has provided ample amounts of documentation13 showing that torture and other unlawful acts are normal in PSB investigations. Counsel also shows documents14 speaking to the issue of members of the "New Citizens Movement" being arrested and sentenced to lengthy prison terms, corroborating the Appellant's testimony. Counsel reminds me that the panel made little to no mention of country conditions or alleged risk to the Appellant, in her Reasons and Decision. [36] Failure to assess such documentation which is credible (or not found to be not credible, as counsel states) is an error of law. The Federal Court has made it clear that, even if there are findings of negative credibility, evidence that is not found not to be credible may suffice for the granting of protection, and therefore it must be examined.15 Summary [37] The Appellant has convinced me that he is politically active and may be perceived by the Chinese government as opposing the current state of affairs in China. [38] There is more than a mere possibility that the Appellant was on video-tape or other photographs taken at the Chinese Embassy protest, making it more likely than not that he is known to the Chinese authorities as a dissident. [39] The panel's negative findings were predominantly based on a misreading or misunderstanding of the evidence in regard to detention and passport issuance. This incorrect credibility finding then tainted the following issues. [40] I find that the Appellant's subjective fear is supported by the objective basis of being a dissident in China. [41] I find that there is more than a mere possibility that this Appellant will face a risk of persecution for a Convention ground (political opinion), should he return to China. Disposition [42] The RAD has found that the RPD's decision will not stand. CONCLUSION [43] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe December 14, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Vijayakumar, Vinushan v. M.C.I. (F.C., no. IMM-929-16), Fothergill, October 19, 2016, 2016 FC 1160. 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 54. 4 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para 13. 5 Exhibit P-2, Appellant's Record, Transcript, at pp. 35-36. 6 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 7 Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008, 2008 FC 398; [2008] F.C.J. No. 542, para. 1. 8 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (July 20, 2017), item 3.6, "Passport Law of the People's Republic of China", 2006. 9 Exhibit RPD-1, RPD Record, Reasons and Decision, at para 18. 10 Aydin, Ilyas v. M.C.I. (F.C., no. IMM-1666-12), Near, November 16, 2012, 2012 FC 1329; [2012] F.C.J. No. 1436. 11 Mendez Lopera, Gustavo v. M.C.I. (F.C., no. IMM-6497-10), Kelen, June 8, 2011, 2011 FC 653; [2011] F.C.J. No. 828. 12 Exhibit RPD-1, RPD Record, Reasons and Decision, at para 18. 13 Exhibit RPD-1, RPD Record, pp. 410-460 and 462-488, China, Submission to the United Nations Committee Against Torture, 56th Session, November 9 -December 9, 2015; No End in Sight - Torture and Forced Confessions in China. 14 Exhibit RPD-1, RPD Record, pp. 490-494, BBC, "China jails 'New Citizens' Movement' activists". 15 Yaliniz, Tacir v. M.E.I. (F.C.A., no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988. Reported: Yaliniz v. Canada (Minister of Employment and Immigration) (1988), 7 Imm. L.R. (2d) 163 (F.C.A.); [1988] FCJ No. 248 (CA); Also see Seevaratnam, Sukunamari v. M.C.I. (F.C.T.D., no. IMM-3728-98), Tremblay-Lamer, May 11, 1999; [1999] F.C.J. no. 694, at para 11; Mylvaganam, Thayaparan v. M.C.I. (F.C.T.D., no. IMM-3457-99), Gibson, July 24, 2000, at para 10; and Baranyi, Zsoltne v. M.C.I. (F.C.T.D., no. IMM-3253-00), O'Keefe, June 15, 2001, 2001 FCT 664, at para 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03830 RAD.25.02 (September 18, 2018) Disponible en français 11 RAD.25.02 (September 18, 2018) Disponible en français